Disparate Treatment Discrimination

Disparate treatment cases allege that an employee was treated worse than others based on a protected characteristic.

Disparate treatment is a way to prove illegal employment discrimination. An employee who makes a disparate treatment claim alleges that he or she was treated differently than other employees who were similarly situated, and that the difference was based on a protected characteristic. In other words, the employee alleges that the employer treated the employee worse because of his or her race, gender, age, or other protected trait.

What Is Disparate Treatment?

An employee making a disparate treatment claim must show, well, disparate treatment. In other words, the employee must show that he or she was treated differently than other employees who don't share the same protected characteristic. In disparate treatment lawsuits, the arguments are usually over how similarly situated the comparable employees were and whether the employer’s decision was made because of the employee’s protected characteristic or for other reasons.

EXAMPLE: Horacio worked in a call center for a software developer, and claims that he was fired because he is Latino. The employer claims that he was fired because he received three customer complaints in the previous quarter. If Horacio can show that other employees who received three or more complaints in a quarter were not fired, and that those employees were not Latino, his argument looks better. On the other hand, if the employer can show that every employee who gets three complaints in a quarter is fired, and that employees of all races have been subjected to this rule, the employer’s defense looks stronger. Similarly, if Horacio can show that his supervisor made derogatory comments about Latino employees or culture, his case is strengthened. On the other hand, if no such comments were made, and the employer can show that it has a strong record of hiring and promoting Latino employees, Horacio will have a tougher time.

Proving a Disparate Treatment Claim

To prove a disparate treatment claim, an employee must first present enough evidence to allow the judge or jury to infer that discrimination took place. This is called presenting a “prima facie” case, because it seems at first appearance to be discrimination; what this evidence consists of depends on the facts, as explained below. If the employee can present a prima facie case, then the employer must state a legitimate, nondiscriminatory reason for the decision. Once the employer presents such a reason, the employee must prove pretext: that the employer’s stated reason is false, a mere pretext for its true motive, which is discrimination.

The Prima Facie Case

The type of evidence an employee has to present to prove a prima facie case of disparate treatment discrimination depends on the facts. If there is direct evidence of discrimination, that’s enough. For example, if an employer hires only female bartenders or has said it will not promote African Americans to management positions, that’s prima facie evidence of discrimination.

Absent this type of smoking gun, an employee has to make a prima facie case through circumstantial evidence. The Supreme Court has laid out a four-part test for the employee’s prima facie case of disparate treatment discrimination. What each part consists of depends on the type of employment decision at issue, but the basic parts of the test are these:

The employee is a member of a protected class (for example, the employee is African American, female, or over the age of 40).

The employee was qualified for a job benefit. For example, the employee applied—and was qualified—for an open position, or the employee held a position that he or she was performing adequately.

The employee was denied the job benefit. In other words, the employee was fired, not hired, or not promoted.

The benefit remains available or was given to someone who is not in the employee’s protected class. For example, if an Asian American employee claims that he was not hired because of his race, he can pass this part of the test by showing either that he was rejected for the position and the employer continued its job search or that the job was filled with an employee of a different race.

The Employer’s Legitimate, Nondiscriminatory Reason

If the employee can prove a prima facie case, the employer must “produce” a legitimate, nondiscriminatory reason for its decision. The verb is important: The Supreme Court has held that the employee has the burden of proving discrimination; the employer need not prove that it didn’t discriminate. Therefore, the employer merely has to present some evidence to support its stated reason.

Typically, the employer’s reason has to do with the employee’s qualifications (for example, that the employee wasn’t qualified for a job, had performance or conduct problems that justified termination, or lacked the necessary skills or credentials for a promotion). The employer might also rely on factors unrelated to the employee, such as an economic slowdown that necessitated layoffs, a decision to take a job in a different direction (for which the employee was unqualified), and so on.

Proving Pretext

Once the employer states a legitimate reason for the decision, the employee must prove that it’s a pretext for discrimination. This doesn’t mean the employee has to come up with absolute proof of an illegitimate motive. Instead, the employee has to present some evidence that calls the employer’s stated reason into question and allows the jury to conclude that the employer was really motivated by discrimination. Here are some examples:

Shifting justifications. If an employer gives different reasons at different times for its decision, that might be enough to prove pretext. For example, an employer tells an employee that her job is being eliminated in a company-wide restructuring, but then claims at trial that she was fired for poor performance.

Applying the rules differently. If an employer doesn’t consistently follow its own legitimate, nondiscriminatory reason for making job decisions, that might demonstrate pretext. For instance, an employee is denied a promotion, and the employer claims that it was because the employee lacked an MBA. If the employee who was promoted also didn’t have an MBA, the employer’s decision looks suspect.

Remarks by decision makers. Part of the employee’s pretext argument could be other evidence of a discriminatory motive. For example, if an employee’s manager made sexist comments and told dirty jokes, then presided over a layoff in which a high percentage of women lost their jobs, that could undermine the employer’s stated reason for the action.